RB1812 - International Law Samenvatting
Bart van den Krommenacker
852639614
Inhoudsopgave:
Section 1
§ 1 History and nature of international law
§ 2 Sources of international law
§ 3 Hierarchy of norms in international law
Section 2
§ 4 States as subjects of international law
§ 5 International organisations as subjects
Section 3
§ 6 The law of treaties
Section 4
§ 7 Jurisdiction
§ 8 Immunities
Section 5
§ 9 Responsibility of States for internationally wrongful acts
Section 6
§ 10 International dispute settlement
§ 11 Enforcement short of force
Section 7
§ 12 Use of force
Case Law
Section 1
§ 1 History and nature of international law
1. The structure of international law
International law differs fundamentally from domestic legal systems in several key respects:
No central legislature equivalent to a national parliament
No compulsory international court or judge
No international police force or army for enforcement
A horizontal legal order in which all states are formally equal
Because no superior authority exists, international law rests on the consent principle: states can
only be bound by obligations they have accepted, whether through treaties (pacta sunt servanda)
or customary international law. The principle of sovereign equality — enshrined in Article 2(1) UN
Charter — means that regardless of population, military power, or economic weight, all states
enjoy equal standing as international legal subjects.
The subjects of international law have expanded over time. Originally conceived exclusively for
and by states, the system now also recognizes:
International organizations
Individuals (particularly through human rights treaties, which make individuals objects —
and increasingly subjects — of international legal protection)
1a. Reciprocity: the engine of a consent-based order
If consent explains why states are bound, reciprocity explains why they comply. By virtue of
reciprocity a state consents to limit its own freedom of action in order to induce other states to
1
,limit theirs; regulated conduct is therefore relational, and reciprocity operates as a pragmatic
policy protecting a state's interests on the basis of law.
Tension/critique — reciprocity vs. objective law. Reciprocity cannot explain the whole field. The
emergence of an "objective law" grounded in peremptory norms complicates the picture of
international law as a system resting purely on consent and mutual inducement. Where a norm is
absolutely valid — the core of international human rights law, the prohibition of torture, genocide
— a state need not be induced to comply, and breach is reprehensible irrespective of how others
behave or whether any reciprocal interest is engaged. This is the §1 form of the consent-vs-
community-interest tension that the examiner rewards: reciprocity (bilateral, interest-based, the
logic of most of the field) set against objective/peremptory law (non-reciprocal, valid regardless of
state practice). An essay that names both currents, rather than only the consent story, reaches
the critique layer.
2. Historical development
The Peace of Westphalia (1648)
The Peace of Westphalia is the conventional starting point of modern international law. The
principle cuius regio eius religio confirmed each ruler's sovereignty over their own territory,
establishing the foundations of non-intervention and state sovereignty.
Key thinkers of this period:
Hugo Grotius — established the freedom of the seas; described international law as a
combination of jus gentium and jus naturale in On the Law of War and Peace
Pufendorf — infused natural law with reason and Christian morality, arguing it prevailed
over custom and treaties
Wolff — sought to describe jus gentium scientifically; promoted an overarching supreme
state, inspiring Kant's civitas gentium and the concept of perpetual peace
Vattel — most practically influential; his Le Droit des Gens (1758) became a handbook for
statesmen and practising lawyers
The Congress of Vienna and the rise of positivism (1815–1914)
The Congress of Vienna (1815) introduced collective great-power management of European
order through the Concert of Europe (Austria, Great Britain, Prussia, Russia, and France). In the
same period, positivism displaced natural law as the dominant intellectual approach, cementing
the following canonical principles:
Sovereign equality and the consent requirement
Freedom from interference in internal affairs
The right to self-preservation
Auguste Comte coined the term positivism to describe a turn away from theological and
metaphysical reasoning toward human-made law. The nineteenth century also saw the first
multilateral treaty-making, culminating in the 1899 and 1907 Hague Peace Conferences, the
thirteen Hague Conventions on the conduct of war, and the establishment of the Permanent
Court of Arbitration.
The twentieth century: institutions and consolidation
League of Nations (1919): first attempt to organize international life collectively; Article 1
of the Covenant aimed to organize "the international life of the family of nations"
PCIJ (1922): established in The Hague; reborn after World War II as the International
Court of Justice (ICJ), with continuity of case law
UN Charter (1945): signed in San Francisco on 26 June 1945 following a war that claimed
over 60 million lives; built on three pillars:
2
, o Peace and security: collective security through the Security Council; five
permanent members with veto rights (Article 27(3)); limited right of self-defence
under Article 51
o International cooperation: supported by Bretton Woods institutions (World Bank
and IMF)
o Development: reflecting the decolonization of Africa and Asia
3. Eurocentrism and the global reach of international law
International law is a European construct that spread globally through colonization. As Hernández
notes, even after decolonization, newly independent states in Asia, Africa, and Latin America
entered an international order whose structures had already been built by and for European
states. The challenge today is whether this historically Eurocentric system can evolve into a
genuinely global legal order.
4. Contemporary challenges
International law today faces pressure from multiple directions:
Technological developments
Environmental and climate concerns
Political challenges requiring global collective action
The continued tension between state sovereignty and the need for collective responses
5. Theoretical perspectives and critiques
The video lecture and chapter survey several competing approaches to international law:
Approach Core claim
Natural law Law has a moral or ethical foundation higher than human-made rules
Positivism Law is an autonomous system created exclusively by states through consent
International law embeds gendered assumptions that must be exposed and
Feminist
challenged
Post-colonial / International law reflects Eurocentric power structures; Third World
TWAIL perspectives seek to destabilize and reform it
International law regulates economic relations in the interest of capitalism;
Marxist
resistance must be grounded in materialist critique
§ 2 Sources of international law
Case law and other relevant sources
PCIJ, Case of the S.S. Lotus (France v. Turkey), PCIJ Reports, Ser. A, No. 10 (1927) (in
sourcebook)
ICJ, Legality of the Threat or Use of Nuclear Weapons, [1996] ICJ Reports 66, paras. 64-
87 (in sourcebook).
ICJ, North Sea Continental Shelf (F.R. Germany v. Denmark; F.R.
Germany v. Netherlands), [1969] ICJ Reports 3, esp. paras. 60-83 (in sourcebook).
ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States), Merits, [1986] ICJ Reports 14, paras. 175-179 (in sourcebook).
ICJ, Armed Activities in the Territory of the Congo (New Application: 2002) (D.R.
Congo v. Rwanda), [2006] ICJ Reports 3, paras 56-70 (in sourcebook).
ICJ, Articles 40, 41 and 48 of the Articles on the Responsibility of States for Internationally
Wrongful Acts (in sourcebook).
3
, 1. Article 38 ICJ Statute: the authoritative enumeration
The standard reference point for the sources of international law is Article 38(1) of the ICJ
Statute, which directs the Court to apply:
(a) International conventions (treaties), whether general or particular
(b) International custom, "as evidence of a general practice accepted as law"
(c) General principles of law recognized by civilized nations
(d) Judicial decisions and the teachings of the most highly qualified publicists — as
subsidiary means for the determination of rules (material, not formal, sources)
Although technically a procedural provision of the ICJ Statute, Article 38 is universally treated as
an authoritative general statement of sources. The key distinction is between formal sources —
the processes through which legally binding rules are created (treaties, custom, general
principles) — and material sources — evidence that sheds light on the existence or content of a
rule (judicial decisions, academic writings).
A further distinction, cutting across the formal/material one, separates sources of law from
sources of obligation. The former generate rules of general application; the latter bind a particular
state in a particular respect without creating law for others. A unilateral declaration is the clearest
example: it obliges the declaring state, but it is not a source of law in the sense that custom or a
multilateral treaty is. The point matters because several items conventionally discussed alongside
Article 38 — unilateral acts above all — are properly understood as sources of obligation rather
than of law.
2. Customary international law
Custom is the oldest source of international law. Article 38(1)(b) requires two elements:
State practice (usus): the actual conduct of states — physical acts, legislation, diplomatic
correspondence, national judgments, and omissions — in their relations with one another
Opinio juris (opinio juris sive necessitatis): the belief that such conduct is legally required,
not merely a matter of courtesy or habit
State practice
Practice must be extensive and virtually uniform, and must include the practice of
specially affected states — those with a particular interest in the subject matter. In North
Sea Continental Shelf the ICJ held that states applying equidistance gave no evidence of
acting out of legal compulsion; equidistance was therefore not a customary rule binding
the FRG. → North Sea CS
A recurring evidential difficulty arises where different organs of the same state —
executive, legislative, judicial — engage in conflicting practice, as often happens in
relation to immunities or the recognition of governments; the state's "practice" must then
be assessed in the round rather than by isolating a single organ.
Opinio juris
Mere frequency of conduct is not enough. In SS Lotus, the PCIJ held that abstention from
a course of action proves a customary prohibition only if that abstention reflects a
consciousness of legal duty. → SS Lotus
Because opinio juris is a psychological element — the sense of conforming to a legal
obligation — it is necessarily inferred from materials rather than observed directly. Beyond
the materials that also evidence practice, the relevant sources include diplomatic
guidelines, military manuals, a state's submissions before international courts, and its
4
Bart van den Krommenacker
852639614
Inhoudsopgave:
Section 1
§ 1 History and nature of international law
§ 2 Sources of international law
§ 3 Hierarchy of norms in international law
Section 2
§ 4 States as subjects of international law
§ 5 International organisations as subjects
Section 3
§ 6 The law of treaties
Section 4
§ 7 Jurisdiction
§ 8 Immunities
Section 5
§ 9 Responsibility of States for internationally wrongful acts
Section 6
§ 10 International dispute settlement
§ 11 Enforcement short of force
Section 7
§ 12 Use of force
Case Law
Section 1
§ 1 History and nature of international law
1. The structure of international law
International law differs fundamentally from domestic legal systems in several key respects:
No central legislature equivalent to a national parliament
No compulsory international court or judge
No international police force or army for enforcement
A horizontal legal order in which all states are formally equal
Because no superior authority exists, international law rests on the consent principle: states can
only be bound by obligations they have accepted, whether through treaties (pacta sunt servanda)
or customary international law. The principle of sovereign equality — enshrined in Article 2(1) UN
Charter — means that regardless of population, military power, or economic weight, all states
enjoy equal standing as international legal subjects.
The subjects of international law have expanded over time. Originally conceived exclusively for
and by states, the system now also recognizes:
International organizations
Individuals (particularly through human rights treaties, which make individuals objects —
and increasingly subjects — of international legal protection)
1a. Reciprocity: the engine of a consent-based order
If consent explains why states are bound, reciprocity explains why they comply. By virtue of
reciprocity a state consents to limit its own freedom of action in order to induce other states to
1
,limit theirs; regulated conduct is therefore relational, and reciprocity operates as a pragmatic
policy protecting a state's interests on the basis of law.
Tension/critique — reciprocity vs. objective law. Reciprocity cannot explain the whole field. The
emergence of an "objective law" grounded in peremptory norms complicates the picture of
international law as a system resting purely on consent and mutual inducement. Where a norm is
absolutely valid — the core of international human rights law, the prohibition of torture, genocide
— a state need not be induced to comply, and breach is reprehensible irrespective of how others
behave or whether any reciprocal interest is engaged. This is the §1 form of the consent-vs-
community-interest tension that the examiner rewards: reciprocity (bilateral, interest-based, the
logic of most of the field) set against objective/peremptory law (non-reciprocal, valid regardless of
state practice). An essay that names both currents, rather than only the consent story, reaches
the critique layer.
2. Historical development
The Peace of Westphalia (1648)
The Peace of Westphalia is the conventional starting point of modern international law. The
principle cuius regio eius religio confirmed each ruler's sovereignty over their own territory,
establishing the foundations of non-intervention and state sovereignty.
Key thinkers of this period:
Hugo Grotius — established the freedom of the seas; described international law as a
combination of jus gentium and jus naturale in On the Law of War and Peace
Pufendorf — infused natural law with reason and Christian morality, arguing it prevailed
over custom and treaties
Wolff — sought to describe jus gentium scientifically; promoted an overarching supreme
state, inspiring Kant's civitas gentium and the concept of perpetual peace
Vattel — most practically influential; his Le Droit des Gens (1758) became a handbook for
statesmen and practising lawyers
The Congress of Vienna and the rise of positivism (1815–1914)
The Congress of Vienna (1815) introduced collective great-power management of European
order through the Concert of Europe (Austria, Great Britain, Prussia, Russia, and France). In the
same period, positivism displaced natural law as the dominant intellectual approach, cementing
the following canonical principles:
Sovereign equality and the consent requirement
Freedom from interference in internal affairs
The right to self-preservation
Auguste Comte coined the term positivism to describe a turn away from theological and
metaphysical reasoning toward human-made law. The nineteenth century also saw the first
multilateral treaty-making, culminating in the 1899 and 1907 Hague Peace Conferences, the
thirteen Hague Conventions on the conduct of war, and the establishment of the Permanent
Court of Arbitration.
The twentieth century: institutions and consolidation
League of Nations (1919): first attempt to organize international life collectively; Article 1
of the Covenant aimed to organize "the international life of the family of nations"
PCIJ (1922): established in The Hague; reborn after World War II as the International
Court of Justice (ICJ), with continuity of case law
UN Charter (1945): signed in San Francisco on 26 June 1945 following a war that claimed
over 60 million lives; built on three pillars:
2
, o Peace and security: collective security through the Security Council; five
permanent members with veto rights (Article 27(3)); limited right of self-defence
under Article 51
o International cooperation: supported by Bretton Woods institutions (World Bank
and IMF)
o Development: reflecting the decolonization of Africa and Asia
3. Eurocentrism and the global reach of international law
International law is a European construct that spread globally through colonization. As Hernández
notes, even after decolonization, newly independent states in Asia, Africa, and Latin America
entered an international order whose structures had already been built by and for European
states. The challenge today is whether this historically Eurocentric system can evolve into a
genuinely global legal order.
4. Contemporary challenges
International law today faces pressure from multiple directions:
Technological developments
Environmental and climate concerns
Political challenges requiring global collective action
The continued tension between state sovereignty and the need for collective responses
5. Theoretical perspectives and critiques
The video lecture and chapter survey several competing approaches to international law:
Approach Core claim
Natural law Law has a moral or ethical foundation higher than human-made rules
Positivism Law is an autonomous system created exclusively by states through consent
International law embeds gendered assumptions that must be exposed and
Feminist
challenged
Post-colonial / International law reflects Eurocentric power structures; Third World
TWAIL perspectives seek to destabilize and reform it
International law regulates economic relations in the interest of capitalism;
Marxist
resistance must be grounded in materialist critique
§ 2 Sources of international law
Case law and other relevant sources
PCIJ, Case of the S.S. Lotus (France v. Turkey), PCIJ Reports, Ser. A, No. 10 (1927) (in
sourcebook)
ICJ, Legality of the Threat or Use of Nuclear Weapons, [1996] ICJ Reports 66, paras. 64-
87 (in sourcebook).
ICJ, North Sea Continental Shelf (F.R. Germany v. Denmark; F.R.
Germany v. Netherlands), [1969] ICJ Reports 3, esp. paras. 60-83 (in sourcebook).
ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States), Merits, [1986] ICJ Reports 14, paras. 175-179 (in sourcebook).
ICJ, Armed Activities in the Territory of the Congo (New Application: 2002) (D.R.
Congo v. Rwanda), [2006] ICJ Reports 3, paras 56-70 (in sourcebook).
ICJ, Articles 40, 41 and 48 of the Articles on the Responsibility of States for Internationally
Wrongful Acts (in sourcebook).
3
, 1. Article 38 ICJ Statute: the authoritative enumeration
The standard reference point for the sources of international law is Article 38(1) of the ICJ
Statute, which directs the Court to apply:
(a) International conventions (treaties), whether general or particular
(b) International custom, "as evidence of a general practice accepted as law"
(c) General principles of law recognized by civilized nations
(d) Judicial decisions and the teachings of the most highly qualified publicists — as
subsidiary means for the determination of rules (material, not formal, sources)
Although technically a procedural provision of the ICJ Statute, Article 38 is universally treated as
an authoritative general statement of sources. The key distinction is between formal sources —
the processes through which legally binding rules are created (treaties, custom, general
principles) — and material sources — evidence that sheds light on the existence or content of a
rule (judicial decisions, academic writings).
A further distinction, cutting across the formal/material one, separates sources of law from
sources of obligation. The former generate rules of general application; the latter bind a particular
state in a particular respect without creating law for others. A unilateral declaration is the clearest
example: it obliges the declaring state, but it is not a source of law in the sense that custom or a
multilateral treaty is. The point matters because several items conventionally discussed alongside
Article 38 — unilateral acts above all — are properly understood as sources of obligation rather
than of law.
2. Customary international law
Custom is the oldest source of international law. Article 38(1)(b) requires two elements:
State practice (usus): the actual conduct of states — physical acts, legislation, diplomatic
correspondence, national judgments, and omissions — in their relations with one another
Opinio juris (opinio juris sive necessitatis): the belief that such conduct is legally required,
not merely a matter of courtesy or habit
State practice
Practice must be extensive and virtually uniform, and must include the practice of
specially affected states — those with a particular interest in the subject matter. In North
Sea Continental Shelf the ICJ held that states applying equidistance gave no evidence of
acting out of legal compulsion; equidistance was therefore not a customary rule binding
the FRG. → North Sea CS
A recurring evidential difficulty arises where different organs of the same state —
executive, legislative, judicial — engage in conflicting practice, as often happens in
relation to immunities or the recognition of governments; the state's "practice" must then
be assessed in the round rather than by isolating a single organ.
Opinio juris
Mere frequency of conduct is not enough. In SS Lotus, the PCIJ held that abstention from
a course of action proves a customary prohibition only if that abstention reflects a
consciousness of legal duty. → SS Lotus
Because opinio juris is a psychological element — the sense of conforming to a legal
obligation — it is necessarily inferred from materials rather than observed directly. Beyond
the materials that also evidence practice, the relevant sources include diplomatic
guidelines, military manuals, a state's submissions before international courts, and its
4
